20
May

When a company hires senior employees, it may invest a great deal of time and money training them.  Employees also may receive access to confidential client lists, relationships with customers and vendors, or proprietary business information.  So what happens when employees move on, taking that training and knowledge with them?  Ex-employees sometimes are uniquely positioned to open up a competing business; as a practical matter, a company is often training its future competition.  The potential damage could be even greater ...

09
May

Will banning certain non-compete agreements protect employees and foster competition?  Washington state legislators and Governor Inslee think so. Non-compete agreements raise policy issues regarding the balancing of legitimate business interests with a worker’s right to freely seek employment—a right that some argue is increasingly important in the growing gig economy.  Like many states, Washington courts have stricken that balance by enforcing non-compete agreements that are “reasonable.”[1] Courts determine whether an agreement is “reasonable” by considering: (1) whether the restraint is ...

22
Apr

“Now this is not the end.  It is not even the beginning of the end.  But it is, perhaps, the end of the beginning.” —Winston Churchill, 1942 The inherited wisdom about wage-and-hour class actions is that they settle after certification.  The assumption is that certification in wage-and-hour class actions is the decisive battle in the war; if lost, the only question is how big the price tag is going to be—the sooner it settles the less it costs.  Certification is ...

30
Aug

Mr. David Bruce presented on the topic of Class Certification at the Seminar Group's 21st Annual Labor & Employment Law Conference on August 24th, 2018. In his presentation titled "Class Certification: The End or Just The Beginning", Mr. Bruce discussed how wage and hour class actions present issues of CR 23 commonality and predominance, highlighted in U.S. Supreme Court’s decision in Wal-Mart Stores v. Dukes. These issues are often prominent in litigating certification, and many class actions settle if and after a ...

08
Aug

Geekwire sought out SBW partner Steve Willey's experience and expertise for its recent article on Amazon's decisions about when to seek to enforce the non-competition provisions in its employment agreements. In "It's Business, and it's Personal: How Amazon Web Services Decides to Enforce Non-Compete Contracts", (Geekwire, June 15 2017), Steve offered input about the practical, business considerations that are often relevant to enforcement of non-competes and other contractual restrictive covenants. (See also our blog post on "

01
Sep

For Washington farmers, the distinction between managing a farm and managing a labor force just got fuzzier. While machines have greatly reduced the need for human labor, some farmers still need lots of workers to provide hands-on labor. On many farms, the need for help (as dictated by the crops themselves) is irregular, varying not only seasonally but even week to week and day to day. For generations, farmers have relied on farm labor contractors (FLCs) ...

23
Nov

There are many reasons an employer may want to require arbitration of disputes with its employees. Arbitration can be (but is not always) less expensive than court litigation; arbitrations are not public and are often confidential; and an arbitration agreement can, when combined with a class-action waiver, effectively preclude employee class actions where the claims are not small. Earlier this month, the Washington Court of Appeals confirmed an employer’s right to require its employees to sign an arbitration ...

01
Apr

Before 2003, Rule 23 of the Federal Rules of Civil Procedure provided that “[a] class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.”  This ambiguous language created  a circuit split regarding whether court approval was required for settlement and dismissal of a putative class action prior to class certification. In 2003, the ...

01
Dec

PART 2 In an earlier post, I explained that in Washington the attorney-client privilege held by corporations protects communications between corporate counsel and lower-level corporate employees, with some exceptions.  Does this also rule protect communications between counsel for government agencies and lower-level government employees?  Although there does not appear to be a published Washington case on point, the answer is very likely yes. Washington law is clear that the attorney-client privilege, codified at RCW 5.60.060(2), protects communications between the legal advisors ...

25
Nov

PART 1 In Upjohn Co. v. United States, the United States Supreme Court held that the attorney-client privilege protected communications between counsel for Upjohn – who were investigating possible illegal activities by the company – and lower-level company employees.[1]  The Supreme Court rejected the Sixth Circuit Court of Appeals’ holding that under the so-called “control group” test, the privilege only covered communications between counsel and “officers and agents … responsible for directing Upjohn’s actions in response to legal advice.”